Defensive Medicine

Question: A patient in his 30s presented to Dr. C with atypical substernal chest pain. There was no family history of heart disease, he had no cardiac risk factors, and the examination was normal. Although the clinical picture was not that of myocardial ischemia, Dr. C obtained an EKG and serum creatine phosphokinase (CPK) and troponin levels, all of which were normal. In recent years, Dr. C, a cardiologist, has given up doing invasive procedures to reduce malpractice exposure. Which of the following is best?

A. The work-up of chest pain in this patient can be considered defensive medicine if it’s done primarily out of malpractice fear.

B. Questionnaire surveys generally conclude that virtually all doctors practice defensive medicine.

C. Giving up "high-risk" procedures purely for medicolegal reasons (malpractice concerns) is a form of defensive medicine.

D. There is controversy over what constitutes defensive medicine, how much it costs, and whether it is in fact widely practiced.

E. All are correct.

Answer: E. Almost all doctors admit they practice defensive medicine, which has been defined as "deviation from sound medical practice that is induced primarily by a threat of liability" (JAMA 2005;293:2609-17). Positive defensive medicine, centering on assurance behavior, provides additional services that are of no medical value. An example is obtaining a head CT in all cases of headaches. Negative defensive medicine speaks to avoidance behavior, with the doctor foregoing interventions that he or she perceives as increased malpractice risk, such as performing invasive procedures.

A 2003 survey of specialists in Pennsylvania found that 93% practiced defensive medicine. Assurance behavior – such as ordering tests, performing diagnostic procedures, and referring patients for consultation – was very common (92%). A particularly widespread defensive act was the use of imaging technology in clinically unnecessary circumstances. Avoidance of litigation-prone procedures and patients was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years including avoiding trauma surgery as well as patients with complex medical problems or who were perceived as litigious.

In a 2005 study, emergency physicians in the upper tertile of malpractice fear were found to use more diagnostic tests and were more likely to hospitalize patients at low risk for coronary artery disease (Ann. Emerg. Med. 2005;46:525-33).

Defensive medicine also was found to be widespread (83%) among 900 doctors in a survey recently conducted by the Massachusetts Medical Society.

It is widely believed that defensive medicine adds to the nation’s medical bill. By correlating professional liability insurance with cost of services, the AMA estimated that in the 1980s, defensive medicine cost $12.1-$13.7 billion each year (JAMA 1987;257:2776-81).

In an oft-cited study by Kessler and McClellan (Q. J. Econ. 1996;111:353-90), the authors measured the effects of malpractice liability reforms using data on elderly Medicare beneficiaries treated for serious heart disease and found that reforms that directly reduced provider liability pressure led to reductions of 5%-9% in medical expenditures. If such Medicare savings, which amounted to $600 million per year for cardiac disease, were extrapolated across the health care system, the total annual savings would amount to $50 billion. A more conservative study estimated that system-wide savings from aggressive malpractice reform would approach $41 billion over 5 years (J. Am. Health Policy 1994;4:7-15).

Skeptics, however, question the way the profession defines defensive medicine, pointing out that malpractice concerns may be one, but not the only or even the primary reason as most interventions add some marginal value to patient care. Besides, physicians in low litigious jurisdictions display similar behavior, for example, in Japan, where 98% of 131 gastroenterologists in Hiroshima admitted to the practice although only three (2%) respondents had been sued and most respondents (96%) had liability insurance (World J. Gastro. 2006;12:7671-5).

Above all, skeptics argue that there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.

Several reports challenge the belief that the practice of defensive medicine is widespread and therefore adds hugely to health care costs (J. Health Polit. Policy Law 1996;21:267-88).

The Klingman study used simulated clinical scenarios and concluded that the extent of defensive medicine was at most 8%. The study by Glassman et al. found no correlation between individual malpractice claims experience to use of resources among 835 physicians including internists. Nor did they find a correlation between malpractice claims experience and an individual physician’s concern about malpractice, tolerance for uncertainty or perception of risk.

Finally, in an interview of 29 physicians and 17 administrators about their use of the more expensive low-osmolar contrast agent and the cheaper high-osmolar agent, investigators found that clinical and cost concerns were more important than were the legal factors (J. Health Polit. Policy Law 1996;21:243-66).

They concluded that "clinical factors dominate the decision-making process, making it unlikely that a policy focus on reducing incentives for defensive medicine will substantially reduce health care costs."

Dr. Tan is an emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.

Question: A patient in his 30s presented to Dr. C with atypical substernal chest pain. There was no family history of heart disease, he had no cardiac risk factors, and the examination was normal. Although the clinical picture was not that of myocardial ischemia, Dr. C obtained an EKG and serum creatine phosphokinase (CPK) and troponin levels, all of which were normal. In recent years, Dr. C, a cardiologist, has given up doing invasive procedures to reduce malpractice exposure. Which of the following is best?

A. The work-up of chest pain in this patient can be considered defensive medicine if it’s done primarily out of malpractice fear.

B. Questionnaire surveys generally conclude that virtually all doctors practice defensive medicine.

C. Giving up "high-risk" procedures purely for medicolegal reasons (malpractice concerns) is a form of defensive medicine.

D. There is controversy over what constitutes defensive medicine, how much it costs, and whether it is in fact widely practiced.

E. All are correct.

Answer: E. Almost all doctors admit they practice defensive medicine, which has been defined as "deviation from sound medical practice that is induced primarily by a threat of liability" (JAMA 2005;293:2609-17). Positive defensive medicine, centering on assurance behavior, provides additional services that are of no medical value. An example is obtaining a head CT in all cases of headaches. Negative defensive medicine speaks to avoidance behavior, with the doctor foregoing interventions that he or she perceives as increased malpractice risk, such as performing invasive procedures.

A 2003 survey of specialists in Pennsylvania found that 93% practiced defensive medicine. Assurance behavior – such as ordering tests, performing diagnostic procedures, and referring patients for consultation – was very common (92%). A particularly widespread defensive act was the use of imaging technology in clinically unnecessary circumstances. Avoidance of litigation-prone procedures and patients was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years including avoiding trauma surgery as well as patients with complex medical problems or who were perceived as litigious.

In a 2005 study, emergency physicians in the upper tertile of malpractice fear were found to use more diagnostic tests and were more likely to hospitalize patients at low risk for coronary artery disease (Ann. Emerg. Med. 2005;46:525-33).

Defensive medicine also was found to be widespread (83%) among 900 doctors in a survey recently conducted by the Massachusetts Medical Society.

It is widely believed that defensive medicine adds to the nation’s medical bill. By correlating professional liability insurance with cost of services, the AMA estimated that in the 1980s, defensive medicine cost $12.1-$13.7 billion each year (JAMA 1987;257:2776-81).

In an oft-cited study by Kessler and McClellan (Q. J. Econ. 1996;111:353-90), the authors measured the effects of malpractice liability reforms using data on elderly Medicare beneficiaries treated for serious heart disease and found that reforms that directly reduced provider liability pressure led to reductions of 5%-9% in medical expenditures. If such Medicare savings, which amounted to $600 million per year for cardiac disease, were extrapolated across the health care system, the total annual savings would amount to $50 billion. A more conservative study estimated that system-wide savings from aggressive malpractice reform would approach $41 billion over 5 years (J. Am. Health Policy 1994;4:7-15).

Skeptics, however, question the way the profession defines defensive medicine, pointing out that malpractice concerns may be one, but not the only or even the primary reason as most interventions add some marginal value to patient care. Besides, physicians in low litigious jurisdictions display similar behavior, for example, in Japan, where 98% of 131 gastroenterologists in Hiroshima admitted to the practice although only three (2%) respondents had been sued and most respondents (96%) had liability insurance (World J. Gastro. 2006;12:7671-5).

Above all, skeptics argue that there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.

Several reports challenge the belief that the practice of defensive medicine is widespread and therefore adds hugely to health care costs (J. Health Polit. Policy Law 1996;21:267-88).

The Klingman study used simulated clinical scenarios and concluded that the extent of defensive medicine was at most 8%. The study by Glassman et al. found no correlation between individual malpractice claims experience to use of resources among 835 physicians including internists. Nor did they find a correlation between malpractice claims experience and an individual physician’s concern about malpractice, tolerance for uncertainty or perception of risk.

Finally, in an interview of 29 physicians and 17 administrators about their use of the more expensive low-osmolar contrast agent and the cheaper high-osmolar agent, investigators found that clinical and cost concerns were more important than were the legal factors (J. Health Polit. Policy Law 1996;21:243-66).

They concluded that "clinical factors dominate the decision-making process, making it unlikely that a policy focus on reducing incentives for defensive medicine will substantially reduce health care costs."

Dr. Tan is an emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.

Question: A patient in his 30s presented to Dr. C with atypical substernal chest pain. There was no family history of heart disease, he had no cardiac risk factors, and the examination was normal. Although the clinical picture was not that of myocardial ischemia, Dr. C obtained an EKG and serum creatine phosphokinase (CPK) and troponin levels, all of which were normal. In recent years, Dr. C, a cardiologist, has given up doing invasive procedures to reduce malpractice exposure. Which of the following is best?

A. The work-up of chest pain in this patient can be considered defensive medicine if it’s done primarily out of malpractice fear.

B. Questionnaire surveys generally conclude that virtually all doctors practice defensive medicine.

C. Giving up "high-risk" procedures purely for medicolegal reasons (malpractice concerns) is a form of defensive medicine.

D. There is controversy over what constitutes defensive medicine, how much it costs, and whether it is in fact widely practiced.

E. All are correct.

Answer: E. Almost all doctors admit they practice defensive medicine, which has been defined as "deviation from sound medical practice that is induced primarily by a threat of liability" (JAMA 2005;293:2609-17). Positive defensive medicine, centering on assurance behavior, provides additional services that are of no medical value. An example is obtaining a head CT in all cases of headaches. Negative defensive medicine speaks to avoidance behavior, with the doctor foregoing interventions that he or she perceives as increased malpractice risk, such as performing invasive procedures.

A 2003 survey of specialists in Pennsylvania found that 93% practiced defensive medicine. Assurance behavior – such as ordering tests, performing diagnostic procedures, and referring patients for consultation – was very common (92%). A particularly widespread defensive act was the use of imaging technology in clinically unnecessary circumstances. Avoidance of litigation-prone procedures and patients was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous 3 years including avoiding trauma surgery as well as patients with complex medical problems or who were perceived as litigious.

In a 2005 study, emergency physicians in the upper tertile of malpractice fear were found to use more diagnostic tests and were more likely to hospitalize patients at low risk for coronary artery disease (Ann. Emerg. Med. 2005;46:525-33).

Defensive medicine also was found to be widespread (83%) among 900 doctors in a survey recently conducted by the Massachusetts Medical Society.

It is widely believed that defensive medicine adds to the nation’s medical bill. By correlating professional liability insurance with cost of services, the AMA estimated that in the 1980s, defensive medicine cost $12.1-$13.7 billion each year (JAMA 1987;257:2776-81).

In an oft-cited study by Kessler and McClellan (Q. J. Econ. 1996;111:353-90), the authors measured the effects of malpractice liability reforms using data on elderly Medicare beneficiaries treated for serious heart disease and found that reforms that directly reduced provider liability pressure led to reductions of 5%-9% in medical expenditures. If such Medicare savings, which amounted to $600 million per year for cardiac disease, were extrapolated across the health care system, the total annual savings would amount to $50 billion. A more conservative study estimated that system-wide savings from aggressive malpractice reform would approach $41 billion over 5 years (J. Am. Health Policy 1994;4:7-15).

Skeptics, however, question the way the profession defines defensive medicine, pointing out that malpractice concerns may be one, but not the only or even the primary reason as most interventions add some marginal value to patient care. Besides, physicians in low litigious jurisdictions display similar behavior, for example, in Japan, where 98% of 131 gastroenterologists in Hiroshima admitted to the practice although only three (2%) respondents had been sued and most respondents (96%) had liability insurance (World J. Gastro. 2006;12:7671-5).

Above all, skeptics argue that there is no acceptable method for measuring the extent and use of defensive medicine, and survey reports are apt to be misleading because of bias and the lack of controls and baseline data.

Several reports challenge the belief that the practice of defensive medicine is widespread and therefore adds hugely to health care costs (J. Health Polit. Policy Law 1996;21:267-88).

The Klingman study used simulated clinical scenarios and concluded that the extent of defensive medicine was at most 8%. The study by Glassman et al. found no correlation between individual malpractice claims experience to use of resources among 835 physicians including internists. Nor did they find a correlation between malpractice claims experience and an individual physician’s concern about malpractice, tolerance for uncertainty or perception of risk.

Finally, in an interview of 29 physicians and 17 administrators about their use of the more expensive low-osmolar contrast agent and the cheaper high-osmolar agent, investigators found that clinical and cost concerns were more important than were the legal factors (J. Health Polit. Policy Law 1996;21:243-66).

They concluded that "clinical factors dominate the decision-making process, making it unlikely that a policy focus on reducing incentives for defensive medicine will substantially reduce health care costs."

Dr. Tan is an emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.